At the Commonwealth level, anti-vilification clauses were pulled from the 1974 Racial Discrimination Act (RDA), following Coalition opposition in the Senate. When legislation was revived in the 1990s, opposition from Coalition and Green senators, again on freedom of speech grounds, saw criminal provisions removed. In the end the Racial Hatred Act 1995 set up a civil rights-based complaints driven system, making unlawful, "otherwise than in private", acts "reasonably likely, in all the circumstances, to offend, insult or intimidate another person or group of people", if done "because of" their "race, colour or national or ethnic origin" — with exemptions for actions done "reasonably and in good faith", artistic, scientific, etc. works, "fair comment" on matters of public interest.
Complaints under the RDA are handled by the Human Rights and Equal Opportunity Commission (HREOC), through a process involving confidential conciliation, adjudication, and as a last resort the court system. McNamara presents statistics of the 618 complaints lodged to 2001 and brief accounts of the 25 that resulted in HREOC public inquiries or Federal court cases. These addressed issues such as constitutional validity, standing to lodge a complaint, the public/private distinction, the harm threshold (and "reasonable likeliness"), the "because of" requirement, and the breadth of the exemptions.
New South Wales passed the first anti-vilification legislation in Australia, in the form of the 1989 Racial Vilification Amendment Act (RVAA), modifying the Anti-Discrimination Act 1977. Section 20C declares:
"It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group."This sets a higher harm threshold than the Commonwealth law, with a requirement for "incitement". Again, there are a series of defenses; the trigger is a complaint to the Anti-Discrimination Board. The RVAA also created, in Section 20D, a criminal offense of "serious racial vilification".
The first of the anti-vilification laws in Australia, the RVAA has the longest history: as a snapshot of that, McNamara analyses the 165 complaints finalised between 1993 and 1995. The most prominent feature is the low success rate, with nearly 80% of complaints declined, withdrawn, or not pursued. Thirteen cases had resulted in tribunal decisions by 2001, with similar issues arising as with the Commonwealth legislation. McNamara also looks at reports into the operation of the RVAA in 1992 (the Samios report) and 1999 (the NSW Law Reform Commission).
The West Australian legislation came in response to a racist campaign by the Australian Nationalist Movement. It is unique in criminalising racial vilification generally, not just a narrower "aggravated" category. There have as yet been no cases — and comparison with a similar Canadian law suggests the barrier to criminal prosecution is too high.
In South Australia legislation had bipartisan support, with disagreements only about its form: the results were criminal sanctions for aggravated cases and the creation of a new statutory tort, allowing civil actions through the ordinary court system. Neither of these have been used yet, with South Australians instead lodging complaints with HREOC under the Commonwealth legislation — and comparison with a similar tort approach by the Canadian provinces of Manitoba and British Columbia highlights its weaknesses.
One of McNamara's central interests is the free speech issue. He does not focus on the central debate here, let alone take sides in it, but rather looks at the way it has influenced legislation, resulting in narrowed or weakened laws, and tribunal and court decisions (though no racial vilification statute has yet faced court challenge). Rhetoric has dominated:
"Just as the absence of an agreed definition of free speech under Australian law has allowed some opponents of legislative regulation to draw on a very broad or absolutist conception of free speech, so too can the lack of definition be 'manipulated' by proponents of legislative regulation who ... define free speech in narrow or restricted [terms] so as to marginalise free speech concerns on the basis that the proposed regulatory system will have no impact on this (narrowly defined) sub-set of expressions."And McNamara suggests that constitutional or statutory recognition of free speech in Australia might actually assist regulation of racial vilification, by defining with a greater degree of precision the constraints on such regulation.
On the options for enforcement procedures, McNamara concludes that criminal laws are mostly symbolic, that statutory torts are unlikely to be widely used, and that the civil human rights approach involving complaints to an agency is most effective. There are however, flaws in the systems that exist in Australia, including an inappropriate emphasis on conciliation, a failure to achieve public education goals through open proceedings, and unnecessary complexity and other barriers to access.